5 Kan. 311 | Kan. | 1870
By the Court,
"We are unable to perceive any error in this case sufficient to reverse the judgment of the court below.
Pleadings: of Petition. It is claimed that the original petition is not sufficient, but why it is not sufficient we are not informed. It seems to us that a petition that states with circumstantial particularity that the city of Topeka, an incorporated city of the second class, negligently left one of its streets out of repair, by reason whereof the plaintiff, without fault on his part, was injured, states facts sufficient to constitute a good cause'Of action.
Evidence Generai statutes. It is also claimed that the court erred in excluding certain evidence of the defendant below. The defendant below desired to introduce the general statutes of the state in evidence to prove to the jury what the law was with reference to cities of the second class; to prove to the jury when and how such cities are organized; how they build bridges, repair streets, etc., and the powers and duties generally of its various officers, but the court rightfully excluded such evidence'; not because it was entirely irrelevant, but because the court must judicially take notice of- what the law is, without proof thereof.
Id: official Act of City Council. The defendant also desired to introduce parol evidence of the official acts of the city council, and the court also rightfully excluded this evidence, for
Triad: InstrucHons to Jury-It is also claimed that the court erred in refusing to give certain instructions to the jury, asked for by the defendant. Now, so far as we are able to judge from the pleadings and the partial statement of the evidence brought to this court, we do not think the court erred. Many of these instructions are simply repetition's of each other, couched in different language, and the most of them are substantially the same as those given by the court, and hence the court did not err in refusing them. A court is not bound to repeat instructions in the same or different language, nor to give the law more than once to the jury, just because it is asked to do so; nor is the court bound to give the instructions in the exact language of the party asking them, but it may give them in its own language if it chooses.
Id : Damages. The court properly refused to give instruction xr xr %/ o number fifteen. There was no evidence upon which to found it. The plaintiff was undoubtedly the owner of the horses and carriage and entitled to recover for injuries done to them, notwithstanding he had mortgaged them for more than they were worth, and the mortgage was then past due. But even if he did not own them, how that fact could preclude him from recovery for injuries done to himself, as this instruction requires, is not easily to be imagined.
The court also properly refused to give instruction number sixteen. It seems from the evidence that the injuries were not received at the place where the street was defective. At that'place'the horses sunk down into a mud hole, became frightened in consequence, and not
Id: Speoiatj Findings. The defendant asked the court to instruct the j-Qjy fo find specially upon certain questions of fact. The court refused and the defendant excepted. Whether this ruling of the court is assigned for error may be doubted. It is not specifically assigned, but some of the general assignments may cover it. We would say, however, that we think the right of the court to direct the jury to find specially in cases of this kind is purely discretionary, and the refusal of the court to do go cannot be assigned for error. Gen. Stat., 684, § 286; C. C. & C. R. R. Co. v. Terry, 8 O. St., 570, 586.
New Teial. We cannot see that the coiu’t erred in overruling the defendant’s motion for a new trial. In the absence of a great portion of the evidence, it must be presumed that the verdict was sustained by sufficient evidence; or at least we can form no opinion whether the verdict was against the evidence or not. Ins. Co. v. Duffey, 2 Kas., 348, 357.
The verdict is not contrary to law. We have already examined all the alleged errors of law occurring during the trial, and find none of them sufficient to set aside the verdict and grant a new trial. If the verdict was for a less amount than it should have been under the evidence, that is not an error of which the defendant can complain. We think the verdict, as well as the judgment founded
Id : Jury Fee. Tlie entering of the judgment before the jury course, an irregularity, [§ 18, Gen. Stat., 483;] but how such irregularity can affect the substantial rights of the defendant we are unable to see, and hence it must be disregarded, [§ 140, Gen. Stat., 655;] and besides, such irregularity is not an incurable one. The subsequent payment of the jury fee by the plaintiff, with the permission of the court, before the judgment was vacated, cured the irregularity.
The judgment of the court below is affirmed.